11 June 2026 – ELRC635-25/26GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No: ELRC635-25/26GP

In the matter between

NEHAWU obo Tshoko, Siyabulela Lee Applicant

and

Department of Higher Education & Training Respondent
(South West Gauteng TVET College)

DETAILS OF THE HEARING AND REPRESENTATION

[1] This is an award in the arbitration between Mr Siyabulela Lee Tshoko, the Applicant, and the Department of Higher Education & Training (SWGC TVET), the Respondent.
[2] The arbitration was held under the auspices of the Education Labour Relations Council (ELRC) in terms of section 191(5)(iv) of the Labour Relations Act, 1995 as amended (“the Act”) and this award is issued in terms of section 138 (7) of the Act.
[3] The arbitration hearing took place virtually, on 23 January 2026 and 18 May 2026.
[4] The Applicant was present and represented by Mr T Mntameka, his Nehawu union representative.
[5] The Respondent was represented by Mr S Mr Carney (Mr Carney), its Labour Relations Officer.
[6] Parties agreed to file written closing arguments by the 25 May 2026, same received were considered in the analysis.
[7] The proceedings were digitally recorded.

BACKGROUND TO THE DISPUTE
[8] The Applicant referred an unfair labour practice related to benefits dispute to the ELRC.
[9] The Applicant is employed by the Respondent as a Post Level (PL) 1, English Lecturer, earning R366 756 annual notch in April 2024)
[10] 49 567.91 – agreed is outstanding among
[11] He was appointed to act as a PL2 Senior English Lecturer from January 2024 to end January 2025. The PL2 Senior English Lecturer post annual notch was R412 551.00 in April 2024.
[1] The Applicant sought acting allowance payment amounting to R45 500.00, for 13 months that he claimed he acted and did not get paid. The acting allowance of R3 500.00 per month was the difference of the acting post and his normal salary.
[2] The Applicant referred an unfair labour practice related to benefits dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA), and a settlement agreement was concluded.
[3] The Respondent denied that there was any unfair labour practice related to benefits committed against the Applicant.
[4] According to the Respondent the Applicant was not authorised to act as a PL 2 English Senior Lecturer during the period that he claimed, and there was no acting contract signed with him.
[5] The Applicant sought an order for the Respondent to pay the acting allowance, compensation for emotional stress, and any other order.

ISSUE TO BE DECIDED
[6] I must determine whether the Respondent committed an unfair labour practice related to benefits by not paying the Applicant acting allowance.
[7] If I find that the first Respondent committed an unfair labour practice related to benefits, I must determine the appropriate relief, otherwise the referral will be dismissed.

SURVEY OF THE EVIDENCE AND ARGUMENT
[8] For the Applicant’s case, two (2) witnesses were called, and a bundle of documents marked A1-102 was submitted. For the Respondent’s case two (2) witnesses were called and a bundle of documents marked R1-32.
Below is the summary of the evidence led.
APPLICANT’S EVIDENCE
First Witness – Mr Siyabulela Lee Tshoko (the Applicant)
[9] The Applicant testified that he applied and he was appointed for acting as an English Senior Lecturer at the South West Gauteng College Roodepoort Campus where he worked as a PL1 English Lecturer since January 2012.
[10] His appointment letter stated that he would act from 2 June 2022 until 31 May 2023.
[11] Instead, he acted until the end of January 2025.
[12] He was authorised to act by the Acting Principal, MJ Monyamane, verbally and in writing.
[13] He performed the senior lecturer duties and was included in email messages addressed to senior lectures until January 2025.
[14] The post was never filled, and he continued acting because he expected the Respondent to inform him of the expiry of his contract and give him notice to that effect, according to its policy.
[15] He felt abused and exploited by acting without allowance. Other senior lecturers’ contracts were extended, and he was doing well in the department and the HOD and HR were attending to his case.
[16] In 2025, he referred the matter to the CCMA, and it was heard in February 2025.
[17] The Respondent paid him R25 000.00 in March 2025, for six (6) of the 18 months that he acted outside the acting period stated in the appointment letter, per the CCMA Settlement Agreement concluded in February 2025, that was enforced.
[18] According to him the payment covered the period June 2023 to December 2023, which was a period he acted without an appointment letter and contract signed with the Respondent.
[19] He was not paid his acting allowance for January 2024 to January 2025.
[20] He was puzzled that the Respondent at the CCMA elected to pay six (6) months instead of the entire 18 months period that he acted without a contract.
[21] After the CCMA case, since he was only paid six (6) months, he referred the matter to the ELRC.

Cross - examination

[22] During cross examination he testified that he never received any correspondence, acting letter, from the Respondent for the period he acted in January 2024 to January 2025.
[23] He did not receive an extension to continue acting, but there was acknowledgement by management of the campus and the HOD of the work that he was doing.

Re-examination
[24] During re- examination he testified that the Respondent did not apply the termination clause according to its policy.

Second Witness – Moloi Marcellinus Martin Molefe (Molefe)

[25] Mr Molefe testified that he was a PL1 English Lecturer, he joined the Roodepoort campus in 2024, and the Applicant was the Acting Senior Lecturer until January 2025.
[26] There were seven (7) people including himself who reported to the Applicant.
[27] When he started in Roodepoort campus, the Applicant called a meeting and introduced him and they did the planning. The Campus Manager also introduced the Applicant as his Acting Senior Lecturer. He also attended senior managers’ meetings and occupied an office marked Senior Lecturer Office. They approached the Applicant when they needed stuff for the department.
[28] The HOD never mentioned that the Applicant’s tenure was terminated, he continued since he found him in the position.
[29] The post was never filled with a permanent lecturer.
[30] After the Applicant left in 2025, the HOD tried but did not manage to do the work that the Applicant use to do. He asked him to do some of the work and he refused because he did not want to do work that he would not be remunerated for.
Cross – examination
[31] There was no cross-examination.

RESPONDENT’S CASE
First witness: Mr Tebogo Mophaleng (Mophaleng)
[32] Mr Mophaleng testified that his role in the Applicant’s appointment process was to facilitate interviews.
[33] According to the Applicant’s acting appointment letter, he was appointed to act from 2 June 2022 to 31 May 2023.
[34] The Applicant’s acting ended in May 2023. He does not know what happened after the acting period, as he was hospitalised in May 2023 and incapacitated.
[35] Normally, to continue acting HR would need to advertise the post and proceed with the recruitment process for acting.
Cross – Examination
[36] Mr Mophaleng testified that the offer that was made at the CCMA for the Applicant’s acting would have been for the period that the Applicant alleged was owed.
[37] When the contract expires, it is practice to inform the person. However, the policy does not state that the person must be notified because the contract has a start and end date and the payment of the acting allowance has a start date and end date and acting is for one year.
[38] At the end of the contract the person must vacate the post.

Re-examination
[39] Only the recruitment department was authorised to make appointments.

Second witness: Thando Khuse (Khuse)
[40] Mr Khuse testified that he was an HR Assistant Director, responsible for paying the acting allowance to the Applicant when he was appointed to act in a senior post during 2 June 2022 to 31 May 2023.
[41] He was not aware of the Applicant further acting after his acting appointment ended in May 2023.
[42] The campus had no authority to appoint. The recruitment process had to be followed.

Cross – Examination
[43] Mr Khuse testified that he did not know on what basis the Applicant continued acting. According to him, the Applicant’s acting allowance stopped at the end of his acting period.
[44] It was incumbent on the campus to get an acting letter for the Applicant in order to be remunerated for acting. He did not know if the campus escalated the extension of the Applicant’s acting request to his manager as he directed them.
[45] It would not have been breach if the Applicant stopped acting at the end of his contract because it had a clear stop and start date. Also, according to policy acting was for 12 months.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

[46] Section 186(2)(a) of the LRA stipulates that unfair labour practice means any unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee.
[47] The Applicant referred a dispute relating to benefits for non-payment of acting allowance to the ELRC, in terms of s186 (2) (a) of the LRA.
[48] The Applicant had to demonstrate through evidence and argument that he was entitled to payment of the acting allowance benefit that he claimed, secondly, that the failure by the Respondent to pay the acting allowance benefit falls squarely within the ambit of s186 (2) (a) of the LRA as unfair labour practice relating to the provision of benefits to the employee.
[49] According to Apollo Tyres , “… “benefit” in s 186(2)(a) of the Act means existing advantages or privileges to which an employee is entitled as a right or granted in terms of a policy or practice subject to the employer’s discretion.’
[50] It was not in dispute that the Respondent’s Policy makes provision for acting and the payment of the acting allowance. Therefore, this dispute on the acting allowance is a benefit as contemplated by the LRA.
[51] It was common cause that the Applicant was appointed and given an acting letter, to act as a PL2 English Senior Lecturer from 2 June 2022 to 31 May 2023.
[52] The Applicant supported his claim that he continued acting until January 2025, following the end of his acting appointment in May 2023, which was not extended, with email correspondence regarding his tasks and referencing him as a senior. His testimony was corroborated by his witness, Mr Molefe’s testimony that in 2024 the Campus Manager introduced the Applicant to him as his Acting Senior Lecturer. Also, that the Applicant was overseeing the department.
[53] On rebuttal, the Respondent’s witnesses testified that that the Applicant’s contract ended in May 2023 and was never extended. Also, that the there was no policy requirement for termination notice as the contract had a clear end date.
[54] It was the Respondent’s witnesses’ testimony that the Applicant’s claim of further acting was invalid due to not being duly authorised with an acting letter provided.
[55] The Applicant also testified that he had no extended acting letter of contract signed with the Respondent, which supporting the Respondent’s witnesses’ testimony.
[56] Therefore, the Respondent’s rebuttal that the Applicant had no valid acting appointment beyond May 2023 had to succeed.
[57] The Applicant’s further evidence was that he concluded a settlement agreement with the Respondent at the CCMA, which was paid, for his acting allowance non-payment of the 8 months that he continued to act after the end of his acting appointment in May 2023, until January 2025.
[58] This is supported by documentary evidence confirming the claim that the Applicant lodged at the CCMA in February 2025, the settlement agreement stating the R25 000.00 as the dispute settlement amount and the proof of payment made thereof.
[59] Mr Mophaleng testified that the offer that was made at the CCMA for the Applicant’s acting would have been for the period that the Applicant alleged was owed.
[60] In the circumstances, the CCMA settlement agreement resolved the dispute.
[61] The Applicant’s dissatisfaction with the settlement terms he concluded with the Respondent at the CCMA, could not be addressed by referring the same dispute to the ELRC.
[62] As a result, I could not find that the Applicant succeeded in his complaints founding this unfair labour practice claim against the Respondent.

I therefore make the following award:

AWARD

[1] The Respondent, Department of Higher Education & Training (South West Gauteng TVET College), did not commit an unfair labour practice relating to benefits as contemplated in section 186(2)(a) of the LRA, in relation to non-payment of acting allowance, against the Applicant, Mr Siyabulela Lee Tshoko.
[2] The application is dismissed.

Thus, done and signed at Johannesburg on 10 June 2026.